92 Decision Citation: BVA 92-09852
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-39 885 ) DATE
)
)
)
THE ISSUE
Whether the character of the appellant's discharge from
service precludes him from entitlement to Department of
Veterans Affairs (VA) benefits.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the
United States
ATTORNEY FOR THE BOARD
Richard C. Thrasher, Associate Counsel
INTRODUCTION
This matter came before the Board of Veterans' Appeals
(Board) on appeal from an administrative decision of
December 1990 from the Houston, Texas, regional office
(hereinafter RO or agency of original jurisdiction). The
appellant had active service from February 1945 to May 1947,
at which time he was discharged under other than honorable
conditions. The notice of disagreement was received in
February 1991. The statement of the case was issued in
April 1991. The substantive appeal was received in May
1991. The appeal was then received and docketed at the
Board in August 1991. The appellant has been represented
throughout his appeal by Veterans of Foreign Wars of the
United States, to which the claims file was referred in
September 1991. That organization then submitted additional
written argument to the Board in January 1992.
REMAND
The Board's preliminary review of the record indicates that
further development is necessary before a decision can be
made on appeal. In the notice of disagreement, the
appellant indicated that other evidence was being submitted
in support of his claim. A review of the record, however,
fails to disclose the presence of this evidence.
Accordingly, because the RO should have informed the
appellant of the absence of the indicated evidence, we
conclude that a remand is required. See Connolly v.
Derwinski, U.S. Vet. App. No. 90-830, slip op. at 4 (Nov.
15, 1991) (the duty to assist includes the obligation to
inform claimants when something more is required of them)
(copy attached).
In addition, we conclude that a remand is necessary for
other reasons. In 1990, a number of attempts were made to
obtain the appellant's service discharge records from the
National Personnel Records Center (NPRC) in St. Louis,
Missouri. The response received from the NPRC, however, was
that no records were located and that they possibly had been
destroyed. In September 1990, a letter was sent to the
appellant informing him of the need to submit any evidence,
contentions, or arguments concerning or explaining the
circumstances surrounding his discharge from the service.
Although a statement was eventually received in which he
indicated that he had been discharged after absenting
himself for a period of six months in order to care for an
ill sister in Mexico, we find that, given the absence of his
service records, more effort should have been made to
explain to him what evidence was needed. See id. at 5; see
also Douglas v. Derwinski, U.S. Vet. App. No. 90-678, slip
op. at 12 (Jan. 24, 1992) (the duty to assist includes the
obligation to suggest the submission of any evidence
necessary to establish a claim) (copy attached); White v.
Derwinski, U.S. Vet. App. No. 90-720, slip op. at 4 (Oct.
17, 1991) (the duty to assist is "particularly great" when
service records are unavailable) (amended Nov. 14, 1991)
(copy attached). For example, the RO should have informed
the appellant of the need to obtain a written statement from
the sister for whom he provided care, if she is still alive,
statements from any other family members or individuals with
knowledge of the reason for his absence, and a statement
from the appellant himself regarding the length of time he
was actually absent without leave, whether his discharge was
pursuant to a court-martial, and whether he was confined,
and for how long, as the result of a court-martial.
Therefore, in order to give the appellant every
consideration with respect to the present appeal, it is our
opinion that further development of the case is required.
Accordingly, this case is REMANDED to the agency of original
jurisdiction for the following:
1. The RO should contact the appellant
and inform him that the evidence referred
to in the notice of disagreement was
never received and that he should submit
or resubmit the desired evidence.
2. The RO should inform the appellant of
the need to submit any other evidence,
contentions, or arguments he has
concerning the circumstances surrounding
his discharge from the service, including
any service personnel or discharge
documents in his possession, a written
statement from the sister in Mexico for
whom he provided care while on
unauthorized leave, statements from any
other individuals with knowledge of the
reason for his discharge, and a statement
from the appellant himself regarding the
length of time he was continuously absent
from the service and the details of any
subsequent actions by the service
department.
3. The RO should make an additional
effort to obtain the appellant's service
records from the National Personnel
Records Center, including any records of
administrative discharge proceedings or
court-martial proceedings, based on any
additional details provided by the
veteran which may assist NPRC in the
development.
Following the completion of this development, the agency of
original jurisdiction should review the evidence obtained to
determine whether the appellant's claim may now be granted.
If not, both the appellant and his representative should be
provided with an appropriate supplemental statement of the
case and then afforded a reasonable opportunity to respond.
The case should then be returned to the Board for further
appellate consideration.
The purpose of this REMAND is to complete additional
development, and the Board does not intimate any opinion as
to the merits of the case, either favorable or unfavorable,
at this time. No action is required of the appellant until
he is notified.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
WARREN W. RICE, JR. ROBERT D. PHILIPP
FRANCIS F. TALBOT
Continued on Next Page
Under 38 U.S.C. § 7252 (1991), only a decision of the Board
of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of
a preliminary order and does not constitute a decision of
the Board on the merits of your appeal.